Ethically Speaking
| Jurisdiction | Wyoming,United States |
| Citation | Vol. 33 No. 6 Pg. 34 |
| Pages | 34 |
| Publication year | 2010 |
Vol. 33, No. 6, 34. Ethically Speaking
Issue: December, 2010
Carl M. Williams Professor of Law and Ethics
University of Wyoming College of Law
Judges' and Lawyers' Ethical Duty of Independence
Alegal system is only as good as its parts. Judges or other decision makers (collectively referred to as "tribunals") must be competent(fn1) and independent. Just as importantly, they must appear to be so. The lawyers who represent clients before tribunals must also be both competent(fn2) and independent. This column discusses the second issue-the ethical duty of both tribunals and lawyers to be independent.
While both tribunals and lawyers need to be independent, the independence required of each group is, as discussed below, different.
Ethical Standards for Judges
Most tribunals before which lawyers appear in Wyoming to represent clients are courts; though it is not uncommon for lawyers to appear before administrative agencies or other decision makers. Judges, of course, preside over courts, and they (the judges) are bound by the Wyoming Code of Judicial Conduct ("Code"),(fn3) with the exception of federal judges, who are subject to the Code of Conduct for United States Judges. Both the Code(fn4) and the Code of Conduct for United States Judges are based on the 2007 edition of the American Bar Associations Model Code of Judicial Conduct.
Tribunals which are not courts, such as administrative agencies, are often governed by specific statutory or regulatory provisions. Administrative agencies or other decision makers in Wyoming are not governed by the Code.(fn5) In fact, there is no set of ethical standards that expressly applies to tribunals other than courts. Because of the variety of potentially applicable statutes, rules, or both, that may apply to tribunals other than courts. It would be difficult and time-consuming to try to discuss all the potentially applicable ethical standards that apply to tribunals other than courts. Accordingly, this article focuses on courts, as there is one Code that applies to judges.
Independence
The Preamble to the Code begins with the observation that "[a]n independent, fair and impartial judiciary is indispensable to our system of justice."(fn6) The placement of "independent" first suggests that the most important quality a court can have, without which the court will neither have nor deserve respect, is independence. Independence, that is, from the influence of other persons or entities, whether in or out of government. Courts, in short, should be, and should be perceived to be, a barrier between the government and the governed, not an instrument for control of the governed by the government.
Canon 1 echoes the Preamble. "A Judge(fn7) Shall Uphold and Promote the Independence ... of the Judiciary, and Shall Avoid ... the Appearance of Impropriety."(fn8)Two terms, "Independence," and "Appearance of Impropriety," are in bold, as both directly address the concept of independence. First, a court should, in fact, be independent from other influences. Second, the court must appear to be so. If that appearance is damaged, respect for the court and its orders will be greatly diminished. Respect for courts and courts' orders is a cornerstone of the Rule of Law, which is founded on respect for courts and voluntary obedience to courts' orders.
Courts do not command military forces adequate to require the parties that appear before them to follow their orders, though courts often have the ability to order law enforcement officers to assist in enforcing their orders. Instead, for the most part, obedience to courts' orders depends on respect for those orders. Respect, in turn, depends on a general belief that courts are independent from influences other than the law (perhaps the best example of respect for court orders came in 2000 when then Vice President Gore conceded the presidential election to then Governor George W. Bush after the United States Supreme Court had ruled in favor of Mr. Bush in the Bush v. Gore(fn9) case. Saying that he disagreed with the Supreme Court's opinion, Mr. Gore said he nevertheless accepted it). The Rule of Law, in other words, depends on respect for courts, not fear of them. And respect can come only with independence.
The word "independence" is defined in the Code as "a judge's freedom from influence or controls other than those established by law."(fn10) The definition makes it clear that a court is not totally independent. Rather, the court is to be free from influences "other than those established by law." Law, not persons or entities, is to guide an independent court. Having courts guided by law is the basis for the notion, long accepted in this country, of the Rule of Law.(fn11)
The importance of law is confirmed by the first two rules that appear under Canon 1. First, in a rule (the rules are the only part of the Code that is binding on judges, and "a judge may be disciplined only for violating a Rule."(fn12)) entitled "Compliance with the Law," judges are admonished to "comply with the law, including the Code of Judicial Conduct."(fn13) Second, a judge is to promote confidence in the judiciary. "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."(fn14) Appearances are so important that anything which undermines the appearance of independence is harmful to the Rule of Law. "Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary."(fn15)
Independence and the appearance of independence are the threshold issues for any judge, or any other tribunal, for that matter. No judge should be allowed to determine litigants' rights, therefore, unless that judge is both independent and appears to be so.
Ethical Standards for Lawyers
Lawyers in Wyoming must be licensed by the Wyoming Supreme Court; anyone who is not licensed and who holds him or herself out as a lawyer commits an unlawful act "punishable as contempt of court."(fn16) Under the Wyoming Constitution, the Wyoming Supreme Court "shall have a general superintending control over all inferior courts . . . "(fn17) Pursuant to that authority, it has adopted the Rules of Professional Conduct for Attorneys at Law ("the Rules") which establish the ethical standards for lawyers in Wyoming. Under those Rules, "[a] lawyer admitted to practice in this jurisdiction [Wyoming] is subject to the disciplinary authority of this jurisdiction [the Wyoming Supreme Court]."(fn18) One of the critical ethical standards for lawyers is the same one discussed above regarding judges-independence.
Independence
Most of the time, a lawyer is acting as a representative of clients. As a representative of clients, a lawyer is an "agent,"(fn19) and may play different roles. A lawyer may also act in a "non-representational" capacity.
In the traditional lawyer-client relationship, in which a lawyer is representing a client, the...
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